It
is an honor and a privilege for me to appear once again before this
distinguished committee to discuss the appropriate standards and
procedures for electronic surveillance of international terrorist
activity. As the more senior members of the committee know, I had the
privilege of testifying on a number of occasions when the committee was
considering the enactment of The Foreign Intelligence Surveillance Act
(FISA). More recently, I testified on proposed amendments to FISA after
9/11.

I bring to this subject a longstanding commitment to
work to resolve perceived conflicts between national security and civil
liberties as well as the perspective of someone who has served in three
administrations in senior national security positions. I was also the
victim of a 21 month warrantless wiretap of my home phone conducted by
the Nixon Administration under the guise of national security.

The
legal issues relating to the warrantless surveillance program currently
being conducted have been extensively analyzed before this committee. I
will not revisit ground covered in previous hearings, but wish to
express my appreciation to the Chair of the Committee for conducting
them, as well as this hearing. (My own legal analysis is attached to
this statement and I ask that it be made part of the record along with
my written statement). Rather, I want to focus on the policy issues
that I believe should guide the committee in addressing possible
legislative action.

Let me start with an area of complete
agreement. If al Qaeda is calling someone in the United States, the
government should be listening. I would have thought that FISA provided
all the authority needed to listen to such calls. If the administration
believed that the FISA rules were not sufficient it should have come to
Congress and asked for an amendment to FISA. Now, if the administration
makes the case in public that, following 9/11, greater flexibility is
needed to listen in a timely way to such calls, Congress should be
prepared to amend FISA as necessary and consistent with the Fourth
Amendment--after it is fully briefed on any such need. I will describe
below the possible elements of such legislation based on ideas that I
understand have been discussed in various congressional offices.

I
want to emphasize what I believe to be a fundamental point: Congress
cannot legislate in the dark. Before Congress considers further
legislation, it must conduct a full and complete investigation of the
full range of current activities being carried on outside of the
procedures prescribed by FISA. It should also insist that the
administration provide a public explanation of what additional
authority it believes it needs, with additional detail provided in
closed hearings. And Congress should require that, as a condition for
granting the additional authority, all surveillance be conducted
pursuant to the standards of FISA.

The legislative history of
FISA as well as the resolutions and legislation which created the
Senate Intelligence Committee and the current oversight commission
leave no doubt that this committee has a right to be fully briefed. I
had understood that the Attorney General was to return to continue his
testimony. Moreover, the letter that he wrote to the committee after
his testimony seemed to call into question the accuracy of the
impression left by his responses to questions before this committee,
making it all the more important that he testify again. That seems to
be a vital next step before the committee considers any legislative
approach. The administration has still not released its contemporaneous
legal analysis of why it thought the Program was legal when it began or
the full extent of the legal authority claimed. Nor has there been an
explicit public denial of the existence of additional programs outside
of FISA. This committee and the American public are entitled to know if
such programs exist without making public details that need to be kept
secret. We also do not know what role the telephone companies are
playing and what certifications may have been provided to them by the
Attorney General.

A review by a small sub-committee of the
Intelligence Committee would not be sufficient. There can be no doubt
that the Senators who are briefed have a constitutional right to share
that information in confidence with all of their colleagues so that the
Senate as a whole can determine what should be done.

When
these investigations are completed, Congress may determine that some
additional legislation is necessary. If so, it should follow the
process that led to the enactment of FISA. This would mean extensive
hearings on the precise legislation in both the intelligence and
judiciary committees as well as adherence to key principles which I now
want to briefly discuss.

When Congress considered the request
of the Ford and Carter Administrations that it authorize a program
under which surveillance could be conducted for national security
purposes, it insisted on a number of key provisions, including that
surveillance of U.S. persons required a warrant from the FISA court
based on a particularized finding of probable cause and that FISA must
be the exclusive means for such surveillance. I would like, if I may,
to remind the committee of the policy considerations that led Congress
to require these procedures. They were valid then and, despite the
unsupported claims of some that FISA is obsolete, they remain valid in
the post 9/11 environment.

As we learned from the abuses
revealed by the Church and Pike Committees, allowing the President –
any President – to determine on his own when surveillance is
appropriate and to conduct it without judicial review inevitably leads
to abuse. We cannot permit faith in any one administration's adherence
to the Constitution to override that fundamental insight, well
understood by the founders of this nation.

A process
authorized by the Congress and providing for particularized judicial
review provides the greatest assurance to those who must implement the
program in the government and the private sector that it is lawful and
that they can implement it without fear of criminal and civil
penalties. We owe that to them. One of the main concerns of Congress in
enacting FISA and making it the exclusive means was to provide clear
guidance to the telephone companies about when they should and should
not provide assistance. Moreover, when there are doubts about the
constitutionality of a program, those involved in conducting the
program will properly balk, thwarting the program, and there will
inevitably be leaks by those deeply troubled by what is being done. It
is worth noting that there were leaks of surveillance programs before
FISA was enacted and of the current program, but, as far as I am aware,
there have been no leaks about programs conducted under FISA.

In
addition, American citizens are entitled to know the rules under which
they may be subject to surveillance by their government in the name of
national security. This is so for several reasons. First, it is
necessary to avoid paranoia and to secure the necessary support of the
American people for the appropriate steps needed to reduce the risk of
terrorist attacks. I cannot tell you how many times I have assured
innocent Americans that they could not be the subject of electronic
surveillance because the Justice Department would never seek a warrant,
the FISA court would never conclude that there was the necessary
probable cause, and warrantless surveillance were prohibited. In
addition, the public is entitled to know what the rules are so that, if
they believe the law requires reconsideration, they can seek change by
lobbying the President and the Congress and by exercising their right
to vote.

Because of these policy concerns, as well as the
dictates of the Fourth Amendment, I urge the Congress to reaffirm,
through oversight and, if necessary through legislation, the core
principle of the FISA system that surveillance of Americans and all
persons within the United States requires warrants based on
particularized probable cause that the target of the surveillance meets
criteria specified in the legislation.

It is against these
criteria that I want to assess the two bills that are before this
committee and to suggest the possible outlines of an alternative
approach to legislation on this issue – should Congress determine after
investigating the matter that legislation is needed. Before
explaining why I believe that both of these bills fail to meet the
criteria I have laid out, I want to express my deep appreciation to the
Chairman for his determination to find a way to restore FISA as the
exclusive means for electronic surveillance for national security
purposes and to insure that all surveillance is consistent with the
Fourth Amendment and is conducted under the supervision of the FISA
court. Needless to say, I share all of those objectives.

I
have four primary concerns with the current draft of the chairman's
bill (S. 2453). First, it authorizes far more than the program, which
the President and the Attorney General have described as the Terrorist
Surveillance Program, already under way. Second, it does not require
particularized probable cause related to the target of the
surveillance. Third, the scope of what is covered is ambiguous.
Finally, it does not deal with the exclusivity issue.

The
Attorney General assured the committee that calls could be subject to
surveillance only if there was reason to believe that at least one of
the parties was overseas and that one of the participants was a
terrorist related to 9/11 and covered by the Authorization to Use
Military Force (AUMF). He also told the committee that the surveillance
was narrowly focused and designed to prevent terrorist acts. S. 2453
goes far beyond these circumstances in a number of ways:

- it permits surveillance to gather any foreign intelligence information, not just information related to terrorist activity;

- it permits surveillance of all terrorist groups and not just al Qaeda;

-
it permits surveillance of persons who engage in clandestine
intelligence activities, which may not even be illegal, and not just
terrorist activity;

- it permits the interception of electronic communications between two persons, both of whom are in the United States.

I
do not understand why the Congress would grant new authority to the
President to conduct electronic surveillance in situations that go far
beyond the need described by the Attorney General to this committee. I
understand that many people believe that there are one or more
additional programs that are not conducted pursuant to FISA. That may
well be true, but I do not see what is accomplished by trying to guess
what those programs may cover, since the Congress could easily end up
granting authority that imperils privacy even though it is not even
needed, and not granting the authority which the government believes
that it needs. This is especially so when the President has made clear
that he will continue to assert the right to conduct programs beyond
FISA even if granted this additional authority. In my view, any
additional grant of authority should track the problem which led to the
program as explained by the Attorney General to this Committee. I will
return to this point.

The second major problem with S. 2453
is that it authorizes the FISA court to approve an entire program and
does not permit the court to review individual surveillances to
determine if they meet the standards of the law and the Fourth
Amendment. Thus it does not provide for the particularized probable
cause which I believe the Constitution requires and goes far beyond the
standards that the Supreme Court has approved for surveillance of
criminal enterprises.

The third issue I would raise is that
S. 2453 is ambiguous about the circumstances under which the government
could seek approval for a program. While I fully understand the
difficulties of drafting with unambiguous language in this area, I must
say that it is not clear what the bill does authorize.

The
circumstances under which the Court may authorize a program are laid
out in Section 703 (a) (7) of S. 2453. I have read the section
carefully many times and conferred with others about it. The language
of the paragraph permits two interpretations, but, with respect,
neither appears to make sense or to be what was intended.

One
reading of the language is that it permits the FISA court to authorize
an entire program covering perhaps hundreds of targets based on a
finding that at least one of the calls to be intercepted will include a
person covered by S. 2453. The Attorney General, under this reading,
would not have to make any representation about any of the other
individual surveillances under the program. That surely cannot be the
Senate's intent.

The alternative interpretation is that the
Attorney General must certify that each and every surveillance meets
the criteria of the statute. The problem with that interpretation is
that it produces a null set. Let me explain. S. 2453 says that the
Attorney General can only use this procedure if he concludes that he
cannot get a warrant from the FISA court under current law. The
circumstances in which the government can seek a warrant under the new
legislation are limited to situations in which a FISA warrant could be
obtained. Specifically, the Attorney General needs to certify that the
target is either a foreign power or an agent of a foreign power or a
person who has been in communication with a foreign power or an agent
of a foreign power and is seeking to commit an act of international
terrorism. If he reaches that conclusion, then he can seek a FISA
warrant and by the terms of this legislation cannot seek a warrant
under the new program.

I am forced to conclude that the
intent of the paragraph must have a third meaning and would urge you to
redraft it to make that intent clear.

S. 2453 does attempt to
put an additional limit on surveillance of persons within the United
States, capping surveillance at 45 days. However, it appears that this
limit can be overcome either by applying for an approval of a new
program or by asserting that the AUMF authorizes the surveillance.

The
fourth major problem with S. 2453 is that it fails to insist that the
President conduct all electronic surveillance within the expanded
authority granted by the Congress. I would urge the Congress to seek
such a commitment from the President before enacting any legislation
and I will suggest below some legislative changes that might well
compel acceptance of this approach.

(My concerns about the
Chairman's bill (S. 2453) are described in greater detail in a
memorandum prepared by my long term comrade-in-arms on these matters,
Jerry Berman and his colleagues at CDT. I attach a copy to this
statement and ask that it be made part of the record.)

The
second bill referred to this committee, introduced by Senator DeWine
and others (S. 2455), shares many of the difficulties of S. 2453,
including authorizing surveillance in situations that go far beyond the
need described by the administration, not requiring particularized
probable cause, and not requiring that it be the exclusive means.
However, the difficulties with S. 2455 are even more serious. It
authorizes indefinite warrantless surveillance (albeit in 45-day
increments) of persons in the United States. In addition, while it
seems to require probable cause that certain factual predicates have
been met, it actually permits surveillance under the much lower
standard of "reasonable likelihood" that the program is focused on a
group that may be engaged in activities in preparation of a potential
act of international terrorism. Moreover, these determinations are made
by the executive branch on its own with no judicial review. (My
concerns about S. 2455 are described further in a different memorandum
prepared CDT. I attach a copy to this statement and ask that it be made
part of the record.)

Such sweeping proposals should be
deferred unless and until a clear showing has been made to Congress as
to why they are necessary. Should Congress seek to legislate based on
the record currently before it, such legislation should respond to the
specific needs that have been asserted by the government rather than to
conjectures as to what additional needs may exist. Based on
conversations I have had with various congressional offices I believe
that legislation which includes the following elements might have broad
support:

1. Authorize additional emergency procedures
under FISA to deal with the problem explained by the Attorney General
to this committee. As I understand the Attorney General's testimony,
the sole reason he presented why FISA could not be used was that the
emergency procedure was not flexible enough. This would be solved by
including in the legislation provisions along the following lines:

a.
The Attorney General would be authorized to establish a program with
appropriate procedures and criteria for initiating surveillance in
emergency situations with appropriate minimization procedures. Under
this program he could authorize designated officials of the NSA to
initiate emergency surveillance of conversations when there are grounds
to believe that one of the persons on the call is a member of al Qaeda
and that one of the persons is outside the United States. b.
Within 72 hours of initiating any emergency surveillance under this
program, NSA would need to submit a request for authority to the AG
specifying the basis for the belief. If the AG approves the
surveillance, it can continue. If he disapproves it, the surveillance
must be terminated and all the fruits destroyed. c. Within 72 of
approving an emergency surveillance under this program the Attorney
General must submit a request to the FISA court for a warrant under the
existing FISA standards. If the court rejects the warrant, the
surveillance must be discontinued and the fruits destroyed.

2.
Amendments to FISA to reaffirm Congress' clear intent that FISA be the
exclusive means to conduct electronic surveillance within the United
States and of US persons for intelligence purposes. My legal analysis
and that of many others, including most persuasively that by David
Kris, which I assume this committee has, makes it unmistakably clear
that Congress intended that FISA and Title III be the exclusive means
of conducting electronic surveillance. Congress could reaffirm this
position and make it clear that it rejects the executive branch's
strained interpretation by amending the sections of FISA which deal
with criminal penalties, civil penalties, and the obligations of
private persons, including telecommunications companies, to refer
specifically to activities conducted pursuant to FISA or Title III.
This would mean, for example, that any certification provided by the
Attorney General to a telephone company would need to certify in
specific terms that the statutory requirements of FISA had been
satisfied as is the clear intent of the current statute.

3. Sunset the new authority in one year.

4.
Direct the Intelligence and Judiciary Committees to conduct a full
inquiry and to report back to the Senate within six months any
additional legislation that may be required in light of the facts.

. Mr. Chairman, I am grateful for this opportunity to testify and, of course, would be delighted to answer any questions.